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672 16 Virginia law register. [Jan., 

exists, so far as we can see, why, in carrying out the provisions 
of the act, the treasurer, sheriff, and sergeant should be re- 
quired to perform the duties imposed upon them by the act in 
the interest of the people for what their services are actually 
worth, or. less, and the clerk should receive as- compensation for 
performing the duties imposed upon him five or six times what 
such services are worth. If the language of the act fixing his 
compensation plainly gave him this exorbitant compensation, 
it would be the plain duty of the court to so decide, for, how- 
ever absurd or unjust a law may be, it is the duty of the courts 
to give it full effect, and leave.it to the Legislature to amend or 
make such changes in the law as it may deem proper ; but where 
the language of the act is ambiguous, the courts will give that 
construction to it which will be the more reasonable and just, 
and such was the construction placed upon it by the trial court, 
in our opinion. 

It may be true, as argued, that the compensation which the 
clerks will receive under the construction placed upon the act 
will be less than their services are worth, or the necessary ex- 
penses of performing the duties imposed. This we think is true 
also in the case of treasurers, sheriffs, and sergeants' for per- 
forming the services required of them. 

Upon the whole case, we are of opinion that the order com- 
plained of should be affirmed. 

Affirmed. 

Note. 

A wide-spread interest has been shown in this case'. We understand 
it has been the practice in nearly all of the counties to charge upon 
the basis which the Clerk of the Court in Rockingham adopted, thus, 
the public treasury was being relieved of an exorbitant amount for 
services rendered; in other words, on the basis on which the clerks 
were charging, the clerk cf Rockingham would have received $453.75, 
whereas on the basis of the decision of the Circuit Court only $2-7.50 
was the amount the Clerk was entitled to. The taxpayers of Virginia 
by this decision are saved probably $10,000. 



Southern Ry. Co. v. Johnson's Adm'x. 

Nov. 17, 1910. 

[69 S. E. 323.] 

1. Master and Servant (§ 243*) — Death of Servant — Railroads — Op- 
eration — Violation of Rules. — No recovery can be* had for the death 
of a railroad engineer, resulting from a collision caused by his will- 

*For other cases see same topic and section NUMBER in Dec. 
Dig. & Am. Dig. Key No. Series & Rep'r Indexes, 



1911.] southern ry. co. v. Johnson's adm'x. 673 

ful violation of a rule regulating the operation of trains, of which he 
had knowledge and which remained unrepealed. 

[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. 
§§ 682, 759, 775; Dec. Dig. § 243.*] 

2. Master and Servant (§ 285*) — Death of Servant— Railroads — 
Rules— Suspension — Waiver — Proof. — Where plaintiff sued for death 
of a railroad engineer in a collision, due to his yiolation of a rule, 
and claimed that the rule had been waived or suspended, the burden 
was on plaintiff to show that violations of the rule had been so fre- 
quent as to become habitual, that they were known or by ordinary 
care should have been known by those charged with the duty of en- 
forcing the rules, and that such persons with such knowledge took 
no steps to compel their observance. 

[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. 
§§ 894-908; Dec. Dig. § 265.*] 

3. Trial (§ 252*) — Instructions. — Where a railroad engineer was 
killed in a collision due tc his violation of signal rules, and the evi- 
dence showed neither knowledge of infractions of the rule by the 
superintendent or his assistants, nor a fixed habit of disregarding 
the rule, the court erred in submitting to the jury whether compliance 
with the rule had been suspended or waived. 

[Ed. Note.— For other cases.-see Trial, Cent. Dig. §§ 596, 612; Dec. 
Dig. § 252.*] 

Error to Circuit Court, Shenandoah County. 

Action by Amos C. Johnson's administratrix against the 
Southern Railway Company. Judgment for plaintiff, and de- 
fendant brings error. Reversed, and remanded for new trial. 

Whittle, J. The judgment under review was recovered by 
the defendant in error (plaintiff below) for the alleged negli- 
gent killing of her intestate, Amos D. Johnson, in the following 
circumstances : Johnson was engineman on train 177, a through 
freight running from Harrisonburg to the Potomac yards, near 
Alexandria. Va., At 12 :35 o clock in the afternoon of Novem- 
ber 9, 1908, he was killed at Pugh's Run, a point 1>4 miles east 
of Woodstock, in a head-on collision with No. 263. a local 
freight train. The situation will be made plain by the following 
extract from the petition for a writ of error: 

"In the operation of trains, on the Harrisonburg or Manassas 
branch, the defendant installed at all telegraph stations what is 
known as the semaphore.' This semaphore consists of two pad- 
dles, one being used for east-bound trains and the other for 
west-bound trains. These paddles are connected with and op- 
erated by the agent or operator at the various stations by means 
of levers, which are located in the latter's office. The normal 



674 16 VIRGINIA LAW REGISTER. [Jan., 

position of these paddles is horizontal, and when in this position 
the signal shows red, indicating danger. Whenever a train ap- 
proaches a telegraphic station, the rules require the engineman 
to sound four short -blasts of the whistle, which is a signal to the 
operator to lower the paddle from danger to proceed, in the. 
event there are no orders held by him for that train. If, how- 
ever, the operator has orders, the paddle remains at danger. As 
a station is approached, if the engineman fails to see the paddle 
fall or changed to proceed before coming to a stop, he is then 
positively forbidden to proceed or leave that station until he re- 
ceives either a train order or a clearance card. This clearance 
card is a written form, signed by the operator, addressed to the 
particular train, stating that he holds no orders for that train. 
This card is delivered in duplicate, one of which the conductor 
hands to the engineman, the other being held by him; the card 
stating in large letters : 'Conductor and engineman must each 
have a copy, and see that their train is correctly designated in 
the above form.' Train orders are delivered by the operator to 
the conductor. He receives two copies, one for himself and the 
other for the engineman; it being made the duty of the engine- 
man to demand his copy from the conductor, since, in the move- 
ment of trains by orders and observance signals, the responsi- 
bility of the engineman, under the rules, is equal with that of the 
conductor." 

At 1 1 :40 a. m. an order was sent to the operator at Edinburg, 
a station 6 miles west of Woodstock, directing 174 to meet 263 
at Woodstock. The same order was delivered to train 263 at_ 
Stiasburg Junction, a station 12 miles east of Woodstock. 
Johnson's train arrived at Edinburg at 12:01. and the semaphore 
being set for danger he gave the required signal, but the paddle 
remained at danger, which notified him that orders were held 
for the train, or that he should not proceed until he received an 
order- or a clearance card. There was conflict in the testimony 
touching the delivery of the order to the conductor at Edinburg 
informing him that 174 was to meet 263 at Woodstock; but, 
however that may have been, it is undisputed that Johnson, in 
flagrant violation of rule 4, departed from Edinburg and pro- 
ceeded on his journey without having received either an order 
or a clearance card. The evidence also tends to show that when 
174 approached Woodstock, both paddls of the semaphore were 
down, which under rule 4 was an imperfect signal ; and rule 27 
declares that "a signal imperfectly displayed, or the absence of a 
signal at a place where a signal is usually shown, must be re- 
garded as a stop, and the fact reported to the superintendent." 
The evidence tends further to show that, after remaining at 
Woodstock about two minutes, Johnson, in violation of the last- 



1911.] southern ry. co. v. Johnson's adm'x. 675 

mantioned rule, left that station at 12 :29, and the collision oc- 
curred at 12:35. 

To break the force of Johnson's disregard of these vital regu- 
lations the plaintiff undertook to show that they had been so fre- 
quently violated by the employees of the defendant as to warrant 
the jury in believing that the superintendent and his assistants 
were advised of that condition and acquiesced in the non-observ- 
ance of the rules. Accordingly the trial court, upon that theory 
and over the objection of the defendant, instructed the jury 
"that it is the duty of a railroad company to adopt, promulgate, 
and enforce proper rules for the guidance and control of its em- 
ployees engaged in the hazardous duty incident to the moving 
and running of trains, and particularly to avoid collision be- 
tween trains moving towards each other on the same track from 
opposite diiections, and that on the failure of said company in 
either one of the above particulars — that is to say, the adoption, 
promulgation, and enforcement of said rules — they may find the 
company negligent. And if they believe from the evidence that 
the said rules were frequently disregarded by the employees on 
defendant's trains, with the knowledge or acquiescence on the 
part of those persons whose duty it was, under other rules of the 
company negligent. And if they believe from the evidence that 
jury may be warranted from such circumstances in imputing 
knowledge of the condition of affairs in this respect to the rail- 
road company, or the want of ordinary care on its part in the 
performance of its duty if it remained in ignorance of a disre- 
gard of its rules as aforesaid." 

The plaintiff, in support of the instruction, examined six rail- 
road men as witnesses, three of whom — a conductor, an engine- 
man, and a brakeman — with an average experience of 14 years 
each, testified that they had never violated the rule themselves, 
and had no knowledge of its having been violated by other em : 
ployees. Of the remaining three witnesses, Chapman, who had 
been station agent at Woodstock for 27 years, testified that the 
rule had been in force generally' throughout his entire term of 
service ; that during that period, however, he had known the rule 
to be disregarded, but he could recall no particular instance of 
its violation Yochum, a conductor, and 1 lawkins, an extra brake- 
man, also testified that they had known the. rule to be violated. 
The plaintiff likewise proved the general rule of the company 
requiring employees to report all violations of rules to the super- 
intendent or his assistant, who are charged with their enforce- 
ment. 

The defendant then introduced the superintendent and assist- 
ant superintendents, whose terms of service covered a period of 
7 years, and proved that they had uniformly enforced observance 



676 16 Virginia law register. [Jan., 

of 'the rule, and that no single instance of its violation had been 
brought to their notice. 

The imperative necessity for adherence to the policy of en- 
forcing strict observance of the rules in question is obvious. In- 
deed, failure of duty either by railroad companies or their em- 
ployees in a matter so essential to the protection of life and prop- 
erty would be little short of criminal. And the courts cannot be 
too careful to avoid impairing the usefulness of such rules by 
engrafting upon them unnecessary limitations by way of excep- 
tion or qualification. 

In Elmgren v. Chicago, etc., R. Co.. 102 Minn. 41, 112 N. W. 
1067, 12 L R. A. (N. S.) 754, the court says: "It is of the ut- 
most importance, as a matter of public policy, that the strict ob- 
servance of these rules should be insisted upon by railroad, com- 
panies, and, whenever opportunity occurs, by the courts. The 
appalling fatalities to human life and the great destruction of 
property consequent upon mismanagement and neglect of signal 
devices is in large measure avoidable. However much sympa- 
thy may be naturally felt for overworked employees, a rule of 
law which would ignore in any degree the safety of the public 
would be little less than calamitous.. If a clear case of violation 
of the solemn duty on the part of an employee to regard signals 
be shown, he must be held to be in no position, in the absence of 
a satisfactory explanation, to recover damages in a measure oc- 
casioned by his own fault." 

The correct principle deducible from the authorities with re- 
spect to waiver or suspension of a rule by way of estoppel from 
acquiescence may be stated as follows: "The burden is upon 
the plaintiff to establish three elements, all of' which must con- 
cur: (1) The violations must have been so frequent as to be- 
come habitual. (2) The violations must have been known, or 
by the exercise of ordinary care should have been known, by the 
employee or employees charged with the duty of enforcing the 
rules involved. (3) The employee charged with the duty of en- 
forcing the rule, being thus aware of its habitual violation, took 
no steps to secure and compel an observance." Wright v. South- 
ern Ry. Co.,' 101 Va. 36, 42 S. E. 913: Driver v. Southern Rv. 
Co., 103 Va._650, 49 S. E. 1000, and Lane Bros. v. Seakford, 
106 Va. 93, 55 S. E. 556, are in harmony with the great weight. 
of authority on the subject and support the principle above 
enunciated. 

In the Wright Case it was shown that the rule there involved 
was uniformly and continuously disregarded, with the knowledge 
of the foreman of car repairs, whose duty it was to enforce it, 
and who took no action whatever in regard to its violation. 

In the Driver Case (citing the former case with approval) the 



1911.] SOUTHERN RY. CO. V. JOHNSON'S ADM X. 677 

court says: "For it it settled law that an employee will not be 
absolved from the imputation of contributory negligence for 
violating a rule of the master, made for his own, as well as for 
the protection of others, because that rule is habitually disre- 
garded, unless it appears (and the burden is on the plaintiff to 
show this) that it was done with the knowledge of the master, 
or he had so neglected to enforce it as that his conduct amounted 
to a suspension of the rule." 

Lane Bros. Co. v. Seakford, supra, proclaims the general 
principle that the master must exercise reasonable care to en- 
force proper rules adopted for the guidance and protection of 
his employees. 

In Bailey's Personal Injuries, § 3367, it is said : "Evidence 
that employees of a railroad company were accostomed to act 
in violation of a rule is not admissible to establish a waiver of 
the rule, unless it be shown that a knowledge of the custom was 
known to the officers charged with the enforcement of the rule." 

Again, at section 3372b, the learned author says: "In order 
to claim a waiver of a known rule by an employee on the ground 
that the rule had been habitually disregarded, and relieve him 
from the imputation of contributory negligence in failing to ob- 
serve it, he must show that knowledge of such non-observance 
by the employees was brought home to the master. * * * 
It makes no difference that other employees frequently or cus- 
tomarily disregarded the rule, unless the company, with knowl- 
edge of their practice acquiesced in it in a way to sanction it, or 
practically to abrogate the rule. Nothing would relieve the serv- 
ant from abiding by his uniform orders." 

In Francis v. Kansas City, etc., R. Co., 110 Mo. 387. 19 S. W. 
935, the court says: "It would be most unreasonable and. un- 
just, after imposing upon the master the duty of promulgating 
a rule for securing the safety of his servant, to permit the serv- 
ant, to recover from the master damages for injuries which the 
observance of the rule would have prevefited. As the master is 
bound at his peril to make the rules, the servant should be equally 
bound at his peril to obey therh. In such case the disaster is 
brought upon the servant by his own voluntary act, and he, and 
not the master, who has discharged his duty, should bear the 
consequences. So it has been uniformly ruled." 

This court has consistently recognized and adhered to the 
rule which denies recovery whenever the injury complained of 
was due to the servant's willful violation of a regulation pre- 
scribed for his own safety. Sheeler v. C. & O. Ry. Co., 81 Va. 
188, 59 Am. Rep. 654 ; Darracott v. C. & O. Ry. Co., 83 Va. 288, 
2 S. E. 511, 5 Am. St. Rep. 266; S. V. R. Co. v. Lucado. 86 Va. 
390, 10 S. E. 422; R. & D. R. Co. v. Risdon, 87 Va. 335, 12 S. 



678 16 VIRGINIA LAW register. [Jan., 

E. 786; N. & W. R. Co. v. Williams. 89 Va. 165. 15 S. E. 522; 
R. & D. R. Co. v. Pannill, 89 Va. 552. 16 S. E. 748 ; R. & D. R. 
Co. v. Dudley, 90 Va. 304, 18 S. E. 274; Driver v. Southern Ry. 
Co., supra; Williams v. Norton Coal Co., 108 Va. 608, 62 S. E. 
342. See, also, Labatt on Master & Servant, § 365, and note 
on "Disobedience of Rules" to Bist v. London, etc., R. Co., 8 
Am. & Eng. Ann. Cas. 3. 

In the present case it is true there was some evidence of 
violations by employees of the defendant of the rules involved 
in instruction No. 1, yet direct knowledge of such infractions 
was not brought home to the superintendent or his assistants; 
nor did the evidence show the habit or custom of disregarding 
the rules to such extent that knowledge might be inferred there- 
from. In these circumstances, the trial court erred in giving 
instruction No. 1 ; and for that error the judgment must be 
reversed. 

We have confined our observations to this single assignment 
of error, because it was the one chiefly Dressed upon us in 
argument, and also because it presents the main reliance of the 
defendant in error to justify the recovery 

As the case must be remanded for a new trial along essen- 
tially different lines, we have purposely refrained from ex- 
pressing any opinion on the weight of the evidence. Reversed. 

Note. 

The correctness of the rule denying recovery for injury or death 
resulting to an employee of a railroad from his willful violation of a 
rule promulgated for the regulation of the operation of trains, as laid 
down in the first headnote, is so well established as to need no com- 
ment. See subject note in 43 L. R. A. at p. 350. See, also, Wetzel v. 
Baltimore, etc., R. Co.. 147 111. App. 195; Chicago, etc., Ry Co. v. 
Shipp, 174 Fed. Rep. 353, 98 C. C. A. 257; Van Camp z: Wabash R. 
Co., 141 Mo. App. 344, 125 S. W. 530; Great Northern R'y Co. v. 
Hooker. 170 Fed. Rep. 154. 95 C. C. A. 410; New Connellsville, etc., 
Co. v. Kilgore (Ala.), 50 So. 205; Crawford v. Southern R'y Co., 150 
N. C. 619, 64 S. E. 589; Cleveland, etc., R'y Co. r. Gossctt (Ind.), 87 
N. E. 723; Collins v. Mineral, etc., R'y Co., 136 Wis. 421, 117 N. W. 
1014; Yougue v. St. Louis, etc., R. Co., 133 Mo. App. 141, 112 S. W. 
985; Cogville v. Louisville, etc., R. Co. (Ala.), 44 So ; Rep. 683; Snel- 
len r. Kansas City, etc.. Ry. Co. (Ark.), 102 S. W. 193; Xew York, 
etc., R. Co. v. Ropp (Ohio), 81 N. E. 748, where it was held that the. 
presence of a superior servant of the master did not excuse the dis- 
obedience; Dallas Coal Co. v. Rotenberry, 85 Ark. 237, 107 S. W. 
997; St. Louis, etc., R'y Co. v. Dupree, 105 S. W. 878, 84 Ark. 377; 
Boucher v. Oregon, etc., Co., 50 Wash. 627, 97 Pac. 661; International, 
etc., R. Co. v. Brice (Tex. Civ. App.). Ill S. W. 1094. 

The following West Virginia cases support this rule: Beall v. 
Pittsburgh, etc.. R. Co., 38 W. Va. 525, 18 S. E. 729; Eastburn v. Nor- 
folk, etc., R. Co., 34 W. Va. 681, 12 S. E- 819; Overby v. Chesapeake, 
etc., R. Co., 37 W. Va. 524, 16 S. E. 813; Davis v. Nuttallsburg, etc., 
Coke Co., 34 W. Va. 500, 12 S. E. 539; Robinson v. West Va., etc., 



1911.] southern ry. co. v. Johnson's adm'x. 679 

R. Co., 40 W. Va. 583, 21 S. E. 727; Johnson v. Chesapeake, etc., R. 
Co., 38 W. Va. 206, 13 S. E. 573. 

Such violation will bar a recovery although it concurred with the 
master's negligence in causing the action. Hampton v. Chicago, etc., 
K. Co., 143 111. App. 91, judgment affirmed 86 N. E. 243. 

It will preclude recovery unless the accident might have been pre- 
vented after the danger was, or might in the exercise of ordinary 
care have become, known to the master or his representatives. Neas 
v. Chicago, etc., R'y Co., i38 Mo. App. 484, 120 S. W. 120. 

But where an injury was caused by the failure of the railway com- 
pany to comply with the Federal statutes as to car-coupling, con- 
tributory negligence in disobeying the rule requiring the perform- 
ance of the work in a particular manner, will not bar a recovery. 
Chicago, etc., Ry. Co. v. Walters, 120 111. App. 152, affirmed in 217 
111. 87, 75 N. E. 441. 

The rufe as to effect of disobedience is thus stated in a full sub- 
ject note in 24 L. R. A. 657: The disobedience by a servant of a rule 
which his master has established to promote his safety in the 
prosecution of the work assigned to him will preclude his holding 
the master responsible for a resulting injury if he has notice of the 
rule which is at the tinu applicable to him and to the duty to be 
performed and has not been waived or abrogated, and if the diso- 
bedience is unnecessary and contributes to the injury." 

Coupling Cars by Hand. — Where the rules of the company require 
couplings to be made with a stick when practicable, the company is 
not liable for injuries received by brakeman while making the coup- 
ling without a stick, if the stick can be used to advantage.- Richmond, 
etc., R. Co.' r. Pannill, 89 Va. 5.">2, 16 S. E. 784; Darracott v. Chesa- 
peake, etc., R. Co., 83 Va. 288, 2 S. E. 511; Norfolk, etc., R. Co. v. 
Briggs, 1 Va. Dec. 757. 

Getting on and off Train While in Motion. — Where a rule of the 
railroad company forbade their servants from getting on and off 
trains when in motion, a servant who was injured while getting off 
a moving engine by tripping over wires which were exposed, failed 
in an action against the company. Overby v. Chesapeake, etc., R. 
Co., 37 W. Va. 524, 16 S. E. 813. 

And so where a section hand was killed in attempting to mount a 
passing engine, contrary to the rules of the company, of which he 
had notice, it was held, that the company was not liable; and it was 
immaterial whether or not his getting on the engine was objected 
to by those in charge of it. Shenandoah Valley R. Co. v. Lucado, 
86 Va. 390, 10 S. E. 422. 

Coupling Cars While in Motion. — And where a brakeman is injured 
while violating a rule of the company which forbids the coupling of 
cars while in motion, he can not recover. Johnson v. Chesapeake, 
etc., R. Co., 38 W. Va. 206, 18 S. E. 573; Darracctt v. Chesapeake, 
etc., R. Co.; 83 Va. 28S, 2 S. E. 511. 

Sending Back Flagman or Putting Out Danger Signal. — Where the 
proximate cause of the death of the plaintiff's intestate was his fail- 
ure to comply with the rules of the company which required him, 
when his train was delayed more than three minutes at a regular 
stopping place, or when it was stopped at an unusual place or fails 
to make its schedule time, to go back and put down danger signals 
to warn any trains moving in the same direction, it was held, that 
there could be no recovery. Driver v. Southern R. Co., 103 Va. 650, 
49 S. E. 1000. 

Running Cars Down Grade without an Engine. — Where, contrary 
to the rules of the company, a conductor allowed cars to be shifted 



680 16 Virginia law register. [Jan., 

and run down grade without an engine to control them, and while 
he was between the cars a brakeman, without objection from the 
conductor, caused another car to run down the same way, which, 
by reason of defective brakes, became unmanageable and ran into the 
first named cars with such violence as to cause injury to the con- 
ductor, it was held, that the conductor could not recover. Richmond, 
etc., R. Co. v. Dudley, 90 Va. 304, 18 S. E. 274. 

Failure to Apply Brakes Where Train Separates. — Richmond, etc., 
R. Co. v. Tribble, 97 Va. 495, 24 S. E. 278. 

Rule as to Imperfect Signal or Absence of Any. — Where a rule of 
a railroad company provides that "a signal imperfectly displayed, 
or the absence of a signal where one is usually shown, must be re- 
garded as a danger signal," a contention of the plaintiff that he was 
injured because of the absence of a danger signal is untenable Nor- 
folk, etc., R. Co. v. Williams, 89 Va. 165, 15 S. E. 522. 

Disobedience Must Be Unnecessary. — Disobedience of the rule is 
not negligence, if the work could not have been done in obedience to 
it. Richmond, etc., R. Co. v. Rudd, 88 Va. 648, 14 S. E. 361; Hayes 
v. Bush, etc., Co., 41 Hun. 407; Memphis, etc., R. Co. v. Graham, 94 
Ala/ 545; Alexander v. Louisville, etc., R. Co., 83 Ky. 589; East Line, 
etc., R. Co. v. Scott, 71 Tex. 703. 

Willful Injury. — A recovery may be had if there is a failure of or- 
dinary care to avoid injury after knowledge of the peril of one in- 
jured by reason of his violation of the rule. Louisville, etc., R. Co. 
v. Watson, 90 Ala. 68; Hissong v. Richmond, etc., R. Co., 91 Ala. 
514. 

Abrogation or Waiver of Rule. — And that a rule habitually dis- 
regarded with the knowledge of the company, or the officer charged 
with its enforcement, is to be considered as waived, is equally well 
settled. See Alabama, etc.. R. Co. v. Roach, 110 Ala. 266; Texas, 
etc., R. Co. v. Leighty, 32 S- W. 799; Wright v. Southern P. Co., 14 
Utah, 383; Spaulding v. Chicago, etc., R. Co., 98 la. 205; Lowe v. 
Chicago, etc., R. Co., 89 la. 420; Northern Pac. R. Co. v. Nickels, 
50 Fed. Rep. 718, l'C. C. A. 625; Little Rock, etc., R. Co. v. Lev- 
erett, 48 Ark. 338; Louisville, etc., R. Co. v. Reagan, 96 Tenn. 128; 
McNee v. Coborn, etc., Co., 170 Mass. 283; St. Louis, etc., R'y Co. 
v. York, 92 Ark. 554, 123 S. W. 376; Kenny r. Marquette, etc., Co., 
243 111. 396, 90 N. E.724; St. Louis, etc., R'y Co. v. Dupree, 84 Ark. 
377, 105 S. W. 878; Burch r. Southern Pac. Co., 104 Pac. 225; Austin 
v. Central, etc., R. Co., 3 Ga. App. 775, 61 S. E. 99S; Central, etc., 
Ry. Co. v. Mobley, 6 Ga. App. 33, 64 S. E. 300; Bordeaux v. At- 
lantic Coast Line R. Co., 150 N. C. 528, 64 S. E. 439; Collins v. Min- 
eral, etc., Ry. Co., 136 Wis. 421, 117 N. W. 1014; Feneff r. Boston, 
etc., R. R. (Mass.), 82 N. E. 705; Bussey v. Charleston, etc., R'y Co., 
78 S. C. 352, 58 S. E. 1015. 

So where such rule is habitually violated, to the knowledge of the 
employees and the master, or has been violated so frequently and 
openly, -and for such a length of time, that the employer could, bv 
the use of ordinary care, have ascertained its nonobservance, it will 
be considered waived bv the master. Smith v. Atlantic, etc., R'y Co. 
(N. C), 61 S. E. 575. See, also, Genson v. Will, etc., Co. (Cal.V. 89 
Pac. 113; Biles v. Seaboard, etc., Ry. Co., 143 N. C. 78, 55 S. E. 512; 
Texas, etc.. Ry. Co. v. Conway (Tex. Civ. App.), 98 S. W. 1070; 
Haynes v. North Carolina R. Co., 143 N. C. 154, 55 S. E. 516, where 
it is said that a rule designed solely for the safety of servants will 
be enforced unless it is shown that the railroad company has in- 
sisted on a disregard of the rule in order to hasten the work. 

It was held in McCarthy v. Pennsylvania R. Co., 189 N. Y. 170, 81 



1911.] southern ry. co. v. Johnson's adm'x. 681 

N. E. 770, that instructions given by a railroad train master at a 
school for instruction in the rules tor the road, were sufficient to 
constitute a general custom, after being in force for four years, 
superseding a rule to the contrary. 

The rules of the company are not binding on the employee (.1) 
if not brought to his attention; (2) habitually disregarded with 
knowledge and acquiescence of superior officers; (3) when usage of 
master tends to mislead in violation of the rules. Little Rock, M. 
R. & T. R. Co. v. Leverett, 48 Ark. 333. If the master permits such 
a departure from the established rule as to create uncertainty as to 
its operation, and injury results, he cannot take advantage of its 
violation in the particular case. Silver Cord Combination Min. Co. 
v. McDonald, 14 Colo. 191. 

But where the danger incurred in violating -a rule, was s'o obvious 
that no prudent person would incur it, the habitual violation of the 
rule did not excuse the employee from the consequences of his neg- 
ligence, although it was proper to consider the custom with the 
other evidence" on the question of negligence. El Dorado, etc., R. 
Co. v. Whatley (Ark.), 114 S. W. 234. 

See, however, Haley v. Solvay Process Co., 112 N. Y. Supp. 25, 
127 App. Div. 753, where the general rule was held to apply as to 
habitual violation of a rule to wear goggles to protect the eyes from 
injury while performing certain, acts traught with possible danger. 

Burden of Proof. — But the burden is upon the employee to prove 
acquiescence by the company in the infraction or disregard of the 
rule. Richmond, etc., R. Co. v. Rush, 71 Miss. 987; White v. t Louis- 
ville, etc., R. Co., 72 Miss. 12; O'Neill v. Keokuk, etc., R. Co., 45 
la. 546; Missouri, etc., Ry. Co. v. Collier, 157 Fed. Rep. 347, where 
an unauthorized act of one employee was held not to establish any 
such custom. Elliott v. Canadian Pac. Ry. Co., 161 Fed. Rep. 250, 
where it did not appear that the rule had^been previously violated. 

Notice must be brought home to the master. Hampton v. Chicago, 
etc., R. Co., 143 111. App. 91, judgment affirmed in 86 N. E. 243; 
Atchison, etc., R'y Co. v. Sowers (Tex. Civ. App.), 99 S. W. 190. 

Failure on some occasions to observe does not show abandonment 
or. Suspension. Houston, etc., R. Co. v. Ravanelli (Tex.), 123 S. W. 
208. 

Although such acquiescence may be implied from the company's 
knowledge thereof through its officers, which may be shown either 
by direct proof or by circumstances. Alabama, etc., R. Co. v. Roach, 
110 Ala. 266; Strong v. Iowa, etc., R. Co., 94 la. 380; Lowe v. Chi- 
cago, etc., R. Co., 89 la. 420; Spaulding v. Chicago, etc., R. Co., 98 
la. 205; Louisville, etc., R. Co. v. Richardson, 100 Ala. 232; Chicago, 
etc., R. Co. v. Flynn, 154 111. 448; McNee v. Coborn, etc., Co., 170 
Mass. 283; O'Donnell v. Alleghany, etc., R. Co., 59 Pa. 239; Penn- 
sylvania R. Co. v. Langdon, 92 Pa. 21; Waterbury v. New York, 
etc., R. Co., 17 Fed. Rep. 671; Central, etc., Co. v. Maltsby, 90 Ga. 
630; Horan v. Chicago, etc., R. Co., 89 la. 328; Lake Erie, etc., R. 
Co. v. Craig, 80 Bad. Rep. 488, 25 C. C. A. 585. 

As to disobedience of rules in obedience to orders of superior, 
see case note in 8 L. R. A. N. S., 90, where it is said: "The de- 
cisions are far from harmonious as to the effect of orders to a 
servant bv a superior to justify him in disobeying a rule of service. 
It is said in Labatt on Master and Servant, vol. 1, page 962; 'Whether 
the order in any particular instance was an excuse for infringing the 
rule depends partly upon the' subject-matter of the rule and partly 
upon the views held by the court with regard to the doctrine of vice 
principalship.' The cases need to be considered in the light of this 



682 16 Virginia law register. [Jan., 

statement, but do not seem to be capable of being entirely harmo- 
nized by any theory of the subject." And again in conclusion: "It 
will seem from the above cases that the decisions are in a some- 
what perplexing condition. The rank of the superior who gave the 
order, and the obviousness or degree of danger involved in violating 
the rule, are both elements which the courts have taken into ac- 
count, in deciding some of the cases; but no general proposition 
seems to be certainly deducible from them which the courts would 
all accept." J. F. M. 



Eaton v. Moore et al. 
Nov. 17, 1910. 

[69 S. E. 326.] 

1. Pleading (§ 8*) — Conclusions. — An allegation that dynamite caps 
were improperly stored was improper, as stating a mere conclusion. 

[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12, 13; 
Dec. Dig. § 8*; Negligence, Cent. Dig. § 182 ] 

2. Explosives (§ 8*) — Negligence — Pleading — Sufficiency. — Allega- 
tions that defendants improperly stored dynamite caps, that plaintiff, 
an infant, got possession of the caps, and in some way, and without 
his fault, the caps were exploded, doing great injury in and about his 
eyes, resulting in total blindness, are insufficient to show actionable 
negligence by defendants, or how the accident occurred. 

[Ed. Note, — For other cases, see Explosives, Cent. Dig. §§ 4, 5; 
Dec. Dig. § 8.*] 

3. Pleading (§ 18*) — Declaration — Requisites A declaration must 

allege material facts sufficient to show a complete right of action *in 
plaintiff, and the facts must be set forth with definiteness and cer- 
tainty. 

[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 39; Dec. 
Dig. § 18.*] 

Error to Circuit Court. Rockingham County. 

Action by one Eaton against J. S. Moore and another. Judg- 
ment for defendants, and plaintiff brings error. . Affirmed. 

Whittle, J. This writ of error is to a judgment for de- 
fendants on demurrer to the amended declaration. The decla- 
ration alleges in substance that the defendants, J. S. Moore and 
W. C. Switzer, were the owners of certain dynamite caps, easily 
exploded and very dangerous, which they had stored in an open 
outhouse located in the yard surrounding and close to the 

*Fcr other cases see same topic and section NUMBER in Dec. 
Dig, & Am. Dig. Key No. Series & Rep'r Indexes.